Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-05-09
COURT OF APPEALS.

John p. White, pre- siding Judge; j. NJ. Hur
and Sam a. Wilson, judges; James L. White
clerk; W. i. Davidson, assistant attorney
general; NJ. NJ. johnson, bailif
Capers & Tichenor VS.. Moses Stewart,
from Dallas county; opinion by White;
P.J. Appellee was engaged in litigation
with the city Of Dallas for piece of land,
and made a contract with appellants for
professional services by which appellants
were TO have one-half of said land if they
recovered it. The land was recovered,
ind appellee falling to carry out the gen
tract, suit was brought andSappellRRSs
recovered $40, and new trial being re-
fused, this appeal is taken, The copr$
erred in charging the jury to disregard ali
testimony as to the contract Tor the coz
veyance of land to appellants, and to fAd
q reasonable sum for services done az
appellants Tor appellees. The court slso
erred in refusing to instruct the jurEfor
appellants, that il. Shey found YEfbal
contract to convey EeEteaaY lands they
would take into consideration the value
of the land in estimating appellants SER
vices. This question is fully treated in
Switzerland on Damages" who says
that in case OF this kind recovery can be
had on q quantum meruit, and while the
value of the land is not the fixed measure
of damages it is competent evidence to
be considered. The judgment is reversed
and thes cause remanded for new trial.
Cord Thompson VS.. the State, from
Callahan county; opinion by Hurt, j.
This was a conviction for the theft Of
cow branded P on the left hip,
from John Merchant. The evidence
shows that Merchant had pur-
chased herd of cattle from one Terrell,
branded P on the side but none branded
on the hip. Terrell however had cattle
brandedP on the hip. Appellant prior to his
taking had authority from Terrell to
handle his cattle of the P brand. Clearly
the cow in controversy was not the prop
erty of Merchant, and the conviction can
not stand, hence, the Judgment is
reversed and the cause remanded.
Dan Murphy VS.. the State, from Will
hanson; opinion by Hurt, J. This was 8
conviction for willfully obstructing g
public road. There is no doubt that
appellant built fence, but there is
some doubt as to whether he built it
willfully across the public road.
There was no definite route for
the road the line of travel
varying over several hundred yards and
we are left in doubt at to the location of
the road. There is not sufficient evidence
to prove that appellant wilfully INSTRUCTED
the road. The other questions need not
be considered. The judgment is reversed
and the cause remanded.
Dan Stewart vs.. G. M. Miller, from
Dallas county; opinion by White, P. j.
In game at cards appellee lost $3.50 and
drew his draft on the Exchange Bank at
Dallas for the amount. While the draft
was lying on the table appellant came IN
and appellee asked him to take up the
draft and he would repay him
the amount. Appellee presented
the draft at bank and it was protested.
This suit was brought snd appellant re-
covered nothing. 1t is well settled that
note, etc, is void even in the hands of
an innocent holder when given for gamb-
ling debt. This is upon the rule that the
law Will never enforce an assumpsit to do
an Illegal act, but there is difference be-
tween assumpsit by operation of the law
and an express sssumpsit between parties
pertaining to contracts connected
with illegal transactions. In this case
Stewart did not win the money and paid
it at the special request of appellee.
It has been decided several times in
Texas that when one person by request
pays the debt of another, which arose
upon an illegal contract, the party paying
it, although cogniZant of the fact, is en-
titled to recover the amount paid from
the person at whose request the payment
was made. Besides these facts it was
proved that appellee made several prom